The battle lines on food labeling

Washington state voters look ready to deliver the country’s first mandatory GMO labeling law with no strings attached early next month.

But the food and biotechnology industries are far from giving up in their battle against labeling requirements for food containing genetically modified organisms and, in fact, have several more arrows in their quill — including a bill to preempt all state laws.

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The call for a law that requires foods to be labeled when they contain genetically engineered ingredients has been growing louder in recent years as the public has been subjected to a handful of controversial studies and worrisome reports about how bad health might be associated with the consumption of GMOs and the repeated message that the food industry has something to hide. Twenty-six states considered GMO labeling legislation last year, and many of those that didn’t pass laws are expected to revive the issue in 2014.

When one state requires GMO labeling, many believe the industry will stop resisting and concede to a federal mandatory standard rather than deal with potentially different standards for each state.

Washington looks to be the state that will set this in motion. Nearly two-thirds of Washingtonians are prepared to vote for ballot initiative 522 and make the Evergreen State the first in the nation to require GMO labeling, according to a poll released Sept. 10. Votes are being accepted from Oct. 18 to Nov. 5 on the initiative, which would require labeling by July 1, 2015, on all food sold in the state that contains genetically engineered components with exceptions for such things as animal feed, alcohol and cheese.

“This is really a matter of when, not if,” said Scott Faber, a former lobbyist for the food industry who now leads one of the largest GMO labeling advocacy groups, Just Label It, as executive director. “It’s part of a larger trend, which is that consumers want to know more about their food than ever before.”

But the food and biotech industries aren’t ready to give up the fight just yet. In fact, they appear to be ready for a long, drawn-out series of battles in which they have several strategies at their disposal:

Plan A: Campaign like crazy to win in Washington state

The GMO labeling vote in Washington isn’t decided yet. Note that polls in California showed a slightly larger number of voters in favor of Proposition 37, that state’s 2012 GMO labeling ballot initiative, in early October 2012 — less than a month before a $46 million marketing campaign helped defeat the measurewith a 3-percentage-point voting margin.

Just like in California, the opponents to I-522 are lining up late in the game in Washington with campaign donations. As of the latest disclosure reports filed with the state Sept. 30, the opposition campaign had raised almost $17.2 million — roughly four times the size of the labeling advocates’ war chest. As they did in California, the labeling opponents are running multiple advertisements on YouTube and television stations that attack the way the law is written. They note, for example, that it would require labels for pet food while exempting beer and meat sold for human consumption.

The cost borne by hard-working Washington farmers will be passed on to consumers, they say. In a Sept. 16 study prepared for the No on I-522 campaign, Northbridge Environmental Management Consultants found, if passed, the law would increase food expenditures for a family of four by at least $360 per year. A study by consumer groups, released Oct. 7, suggests instead that the added cost would only amount to $2.20 per year per person.

Also like in California, multiple newspaper editors have taken stands against the labeling initiative.

“All in all, the initiative holds the potential to create more problems than it solves — for farmers, manufacturers, retailers and consumers,” the editorial board of the Yakima Herald says in a column published Sept. 29. “Food makers and retailers already can use labels to inform consumers if they offer foods free of GMO; if advocates wish to further their cause, they can do so in a market-driven manner, by building demand through publicizing what they offer.”

It’s long been speculated that the food and biotech industries stand ready to file a suit against any state that passes a mandatory GMO labeling law, arguing both the violation of First Amendment rights and federal pre-emption.

For a seminar held a year ago in relation to California’s GMO labeling initiative, attorney Sarah Roller, a partner at Kelley Drye & Warren, spelled out the arguments that could be made. She suggested the industry would most likely cite a 1996 decision by the 2nd Circuit Court of Appeals in the case International Dairy Foods Association v. Amestoy. In that case, the appeals court overturned a Vermont law that required dairy farmers to disclose the use of recombinant bovine somatotropin for milk products. The court found in that case that labels would be “the functional equivalent of a warning” and require dairy farmers to “speak against their will” on a matter that doesn’t involve “a reasonable concern for human health.”

It’s the fear of an expensive legal battle that has helped to keep some states from passing GMO labeling legislation and pushed both Connecticut and Maine to pass labeling laws in such a way that they don’t go into effect unless similar laws are passed by a certain number of other states representing a combined population of 20 million. Maine’s governor has yet to sign the state law.